Case Western Reserve Journal ofInternational Law

Volume 8 | Issue 1

1976

The Law and the Whale: Current Developments inthe International Whaling ControversyCarl Q. Christol

John R. Schmidhauser

George O. Totten

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Recommended CitationCarl Q. Christol, John R. Schmidhauser, and George O. Totten, The Law and the Whale: Current Developments in the InternationalWhaling Controversy, 8 Case W. Res. J. Int'l L. 149 (1976)Available at: https://scholarlycommons.law.case.edu/jil/vol8/iss1/10

1976]

The Law and the Whale:Current Developments in the

International Whaling ControversyCarl Q. Christol*

John R. Schmidhauser**George 0. Totten'

Introduction

T HE LAW HAS had a long involvement in the fortunes of thewhale. Unfortunately for the whale, the law and the institu-

tions for its enforcement have been as frequently hostile to thewhale as they have been friendly.

However, the law is an instrument of policy. Thus, in realityit has been the past policy of human beings to formulate laws andto create institutions which have made of the whale an endangeredspecies. Basic changes in such policies can reverse this processand properly protect them. Indeed, there were several efforts toachieve such a reversal during the early decades of the twentiethcentury when whale "harvesting," as it has been called, was reach-ing its highest levels. These early efforts at conservation all failed,but are important because they incorporated legal principles orenunciated positions which foreshadowed those of contemporaryenvironmentalists.

Early Effort at Conservation

In the days before the scientific and technological explosion,which reached its take-off stage only with the era of World WarII, the whale served a variety of economic needs. Thus, therewere few efforts to preserve and protect it from its catchers; how-ever, there were several that are noteworthy. For example, in1924, the League of Nations established a Committee of Interna-tional Law. Its reporter was M. Jose Leon Suarez of Argentina.In his 1925 report, he observed that the whaling industry was

* Professor of International Law and Political Science, University of South-

ern California.** Professor of Political Science, University of Southern California.

Professor of Political Science, University of Southern California.

CASE W. RES. J. INT'L L.[

"rapidly exterminating the whale." ' He also stated that "theriches of the sea, and especially the immense wealth of the Ant-arctic region, are the patrimony of the whole human race, andour Committee is the body best qualified to suggest to the Govern-ments what steps should be taken before it is too late."2

The first League effort proved inauspicious for the whale.Although the United States suggested in 1927 that "an interna-tional conference is desirable to consider the problem of conserv-ing the whale," 3 this was opposed by several nations, one of whom,Japan, urged that the matter be handled through bilateral or multi-lateral agreements among directly concerned countries.

The matter seemed to be dead by 1929. The position wassummed up as follows:

There seems at present little danger of complete exterminationof the species in view of the nature of modern whaling, theamount of capital involved being so considerable that a com-pany must kill a considerable number of whales in order to beable to make profits, and if hunting becomes unprofitable,it will stop by itself, long before the whales are exterminated. 4

Nonetheless, a number of concerned nations under Leagueauspices negotiated a Convention for the Regulation of Whalingon September 24, 1931.5 Thus was begun a faltering system ofinternational legal regulation, which down to the immediate pastseems to have been designed more for the short-range economicbenefit of whale catchers than for the welfare of the generalcommunity - certainly not for the benefit of the whale. The1931 agreement imposed only limited restrictions on the signatories.It prohibited destructive and wasteful methods of whaling suchas the taking of very young whales and females with offspring.Two of the major whaling nations, Japan and Russia, did not ac-cept it. The agreement was essentially unenforceable. However,the United States endeavored to meet the obligations which it

I M. Suarez, Report on the Exploitation of the Products of the Sea, 20 AM. J.INT'L L. 231, 235 (Supp. July 1926).

2 Id. at 236.3 L.N. Doc. C.196.M.70.1927.V. at 161, cited in L. Leonard, Recent Negotia-

tions Toward the International Regulation of Whaling, 35 AM. J. INT'L L. 90, 98, n.38(1941).

1 10 LEAGUE OF NATIONS OFF. J. 1594 (1929); Leonard, supra note 3, at 99.5 Convention for the Regulation of Whaling, Sept. 24, 1931, 49 Stat. 3079,

T.S. No. 880. Reasons for such an agreement are set out in Jessup, The Inter-national Protection of Whales, 24 AM. J. INT'L L. 751 (1930).

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had assumed by enacting the Whaling Treaty Act of March 31,1932.6

Britain hosted a conference on whaling in 1937. This resultedin the International Agreement for the Regulation of Whalingand the Final Act of June 8, 1937. 7 Interested nations met againin London in 1938 and entered into a Protocol Amending theInternational Agreement and Final Act of June 24, 1938.8 Theseagreements produced a whaling season, prescribed minimumlengths for certain species, provided that each factory ship was tocarry one government inspector, and closed whaling in certainareas of the Atlantic, Pacific and Indian Oceans for identifiedspecies. This was followed by an informal conference in Londonon July 17, 1939. Although it bore the title "International Con-ference for the Regulation of Whaling," the effort centered onsecuring compliance with earlier agreements and attempted to in-duce Japan to adhere to the 1937 Agreement and the 1938 Pro-tocol. 9

The Second World War prevented further legal efforts on be-half of the whale until 1944. However, by 1944 the British con-vened interested nations for discussions and out of this resultedthe 1944 Protocol. This Protocol introduced the "principle of amaximum total catch for the season in Antarctic pelagic whaling;not more than 16,000 blue whale units were to be taken in theopen season in the area south of 400 South Latitude." 1° Theblue whale unit was equated with two fin whales, two and one-half humpback whales, and six sei whales. In retrospect, this deci-sion has been seen as unwise. In 1973 it was described in theseterms:

Unfortunately, because this unit of measurement was scien-tifically unsound, it legitimized indiscriminate reduction of allspecies.11

With the close of World War II, intensive whaling operationswere reinstituted. Catches that had peaked in 1940, and which had

6 Whaling Treaty Act of March 31, 1932, 49 Stat. 1246.7 International Agreement for the Regulation of Whaling and the Final Act

of June 8, 1937, 52 Stat. 1467, T.S. No. 933.8 Protocol Amending the International Agreement and Final Act of June 24,

1938, 53 Stat. 1794, T.S. No. 944.

9 Leonard, supra note 3, at 105.10 D. JOHNSTON, THE INTERNATIONAL LAW OF FISHERIES 400 (1965); 148 U.N.T.S.

11, 43.

11 THE FOURTH ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY

345 (1973).

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fallen off considerably during 1942 through 1945, began to be verylarge again in 1945 and in 1946.12 Concern over excessive kills,including the very great possibility that certain kinds of whales,especially the blue, were marked for extinction, led the UnitedStates to call a conference to deal with the situation. The confer-ence met in Washington, D.C., and in December, 1946, producedthe International Convention for the Regulation of Whaling.13

The United States ratified the Convention on July 18, 1947.The nations bound by the Convention have changed during the

years. Peru was a party at one time, but is no longer. Japanwas not bound for many years, but now is. At the present time,the following are parties to the Convention: Argentina, Australia,Brazil, Canada, Denmark, France, Iceland, Japan, Mexico, Nor-way, Panama, South Africa, the Soviet Union, the United King-dom, and the United States. The same nations are also partiesto the Protocol to the International Convention for the Regulationof Whaling of November 19, 1956.14 The Protocol became effec-tive for the United States on May 4, 1959.

The 1946 Convention sets forth today's international law ofwhaling. The Convention calls for annual meetings of the In-ternational Whaling Commission, and pursuant to the terms of theagreement conditions in which the member States can engage inwhaling are fixed by annual Schedules. The 1946 Convention andthe 1946 Schedule fixed a variety of methods to allow for an ex-pected optimum condition. This optimum condition, as foreseenin 1946, would allow for both the killing of whales and also theprotection of the whale stocks. This hope has never been realized;although, there have been some corrective actions over time asthe stock has been depleted, or largely so, depending on the typeof whale.

In broad terms, the 1946 agreements prohibited the killing ofsome types (gray and right whales); prohibited killing under cer-tain circumstances because of age, sex, and size; prohibited theuse of factory ships to kill baleen whales in certain areas; fixedhunting seasons and hunting areas for certain species; imposedlimits on the total catch of certain species; required notificationsof catches made in certain areas; prohibited the use of land sta-

12 J. McHugh, The Role and History of the International Whaling Commission,THE WHALE PROBLEM, A STATUS REPORT 303, 306-307 (W. Schevill ed. 1974).

13 International Convention for the Regulation of Whaling, July 18, 1947,62 Stat. 1716, T.I.A.S. No. 1849, 1 U.N.T.S. 2124.

14 Protocol to the International Convention for the Regulation of Whaling,Nov. 19, 1956, 10 U.S.T. 952, T.I.A.S. No. 4228, 338 U.N.T.S. 366.

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tions and vessels harboring there from hunting during a portionof each year; restricted the mobility of factory ships; required thatall parts of whales hunted commercially be used for commercialpurposes; fixed compensation standards for gunners and crews;imposed the requirement that hunters report to the InternationalWhaling Commission detailed information on kills, position of calv-ing grounds and the migration routes of whales; and, requiredeach member nation to provide the Commission with copies of na-tional laws whereby each nation imposed on its whalers the dutyto conform to the terms of the Convention. The Schedule alsoreadopted the concept of the blue whale unit, and provided "[t]henumber of baleen whales taken during the open season caught inany waters south of 400 South Latitude by whale catchers at-tached to factory ships under the jurisdiction of the ContractingGovernments shall not exceed sixteen thousand blue whaleunits. "15

The organic terms of the Convention contained a major defect.The Commission, as a governing body but without any enforce-ment authority of its own, was expected to amend the Scheduleannually in order to modify seasons, areas of whaling, and mostimportantly, quotas. Thus, while the member nations could regu-late the conservation and utilization of whale resources by a three-fourths vote of all members, an escape from any such decisionwas also provided. Pursuant to Article V of the Convention, anymember nation was entitled to present an objection to such athree-fourths" decision. Having made such an objection, and nothaving subsequently withdrawn it, the objecting nation would notbe bound by the majority vote. This allowed for a system in whichcertain nations, in particular Japan and the Soviet Union, oper-ated beyond the wishes of the majority and were immune fromthe limitations and prohibitibns mentioned above. Thus, despitethe terms of the Convention, the 1946 Schedule and the subse-quent Schedules, the killing of blue whales increased up to 1951,humpbacks with varied annual catches up to 1959, fins to 1952,sei through 1965, and sperm through 1970. By 1968 the blue andthe humpback had been essentially eliminated as economic re-sources and were threated as species. Nonetheless, following 1966,the fin, sei, and sperm whales were being caught in large num-bers, with the sei and the sperm whales subjected to very substan-tial increases in catches as compared with 1946.16

is International Convention for the Regulation of Whaling, July 18, 1947,Schedule, para. 8(a), supra note 13.

16 McHugh, supra note 12, at 306-307.

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The Controversy Over the International Whaling Commission

The differences in values and policy positions between nationaland international environmental and conservation organizationsand the whaling industries of the major whaling nations have be-come transposed into the official or semi-official positions of manyof the nations represented on the International Whaling Commis-sion. Indeed, it has often been the case that the delegation of anation is composed of representatives of the IWA whaling industryof that nation. For example, Iwao Fujita, President of the Japa-nese Whaling Association is also delegate from Japan on theInternational Whaling Commission. Or conversely, another na-tional delegation may be representative of a conservationist posi-tion. This situation, which has become characteristic of thecontemporary era, is not only a fundamental source of divisions onthe Commission, but renders more difficult the fulfillment of theconflict reduction mission of this international organization. Inthe perspective of Black and Falk, "[c]onflict management isthe central problem of the international legal order, the fundamen-tal yardstick by which the adequacy of the system as a whole mustbe measured."i7 Therefore, the issues to be resolved within thejurisdiction of the International Whaling Commission provide asignificant series of tests of the conflict resolution capabilities ofthat international organization. The organizational structure andjurisdictional capabilities, or deficiencies, of the IWC are of ob-vious importance in such an assessment. The very terms of itsorganization contain the seeds for internal and external conflictbecause they are essentially contradictory. The terms propose "toprovide for the proper conservation of whale stocks, and thus makepossible the orderly development of the whaling industry." TheCommission has thus been charged with being merely a forum forthe whaling industry while virtually ignoring whale conservationduring most of its first two decades.

It was not until 1963 that the first quota reductions wereadopted. Later, total bans on the killing of certain species of whalessuch as the blue, humpback, right and gray were adopted. Thereduction of the blue whale to 8,000, only 10 percent of its popula-tion 30 years ago, has been dramatized by conservation groupsas a measure of the seriousness of the threat of whale extinctionand, during past years, of the ineffectiveness of the IWC. Studiessuch as George Small's The Blue Whale have provided rather de-

17 3 C. BLACK & R. FALK, THE FUTURE OF THE INTERNATIONAL LEGAL ORDER

vii (1971).

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tailed commentary on the consequences of the Commission's deci-sions.18 Indeed, J. L. McHugh, former chairman of the IWC,summed up the first two decades of the Commission in much thesame terms as some of the external critics:

From the time of the first meeting of the commission estab-lished under the International Convention for the Regulationof Whaling (1946) in 1949 to the disastrous meetiig of 1-964,almost all major actions or failures to act were governed byshort-range economic considerations rather than by the require-ments of conservation. 19

The impact of these policies was ultimately devastating for a widevariety of whale stocks. As detailed above, as soon as one speciesin a particular geographic area was depleted, the whaling indus-try shifted to the next species and to geographic areas which itdeemed economically desirable. The development of modern tech-nological methods for killing whales, particularly in the 20th cen-tury, had dramatically changed the relationship of whalers to theirprey. In fact, whales had a respite from killing only in those ma-jor periods when men devoted their energies to killing each otherin World Wars I and II. By the contemporary era, Japan and theSoviet Union outstripped several other whaling nations such asNorway and the Netherlands, which earlier in this century hadbeen leading whale harvesters. The United States whaling in-dustry in both the 19th and 20th centuries had contributed to thedecimation of whale stocks. Scott McVay cited a modern exampleof a California whaling company which virtually eliminated in onedecade a stock of humpbacks which had appeared regularly be-tween Monterey and San Francisco. From the beginning of itsoperations in 1956 and 1965 when the IWC prohibited the killingof humpbacks, the yearly kill of this California whaling companywas as follows:

1956-133 1961-621957-199 1962-39

1958-115 1963-551959-140 1964-271960- 67 1965-04

McVay indicated that this virtual annhilation represents in micro-

18 G. SMALL, THE BLUE WHALE (1971).19 McHugh, supra note 12, at 305-308.

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cosm, the familiar pattern of whaling which has taken place in themajor harvesting regions. 20

World opinion has long favored some international controlover whaling. Thus, in 1958 the United Nations Conference onthe Law of the Sea adopted a resolution requesting "states to pre-scribe, by all means available to them, those methods for the cap-ture and killing of marine life, especially of whales and seals,which will spare them suffering to the greatest extent possible."21

The growing concern of scientists and environmental groups for thefate of whales became significant at the international level in the1970s. In June of 1972, 110 nations, including the United States,adopted a resolution urging a 10-year moratorium on the killingof whales. This action, taken at the United Nations Conferenceon the Human Environment at Stockholm, Sweden, was con-firmed in June, 1973, at the first session of the United NationsGoverning Council for Environmental Programs held in Geneva,Switzerland and reconfirmed at the second session of the sameinternational body meeting in March, 1974, in Nairobi, Kenya.The key recommendation of the 1972 international resolution wasthat "Governments agree to strengthen the international whalingcommission, to increase international research efforts, and as amatter of urgency to call for an international agreement, under theauspices of the international whaling commission and involving allGovernments concerned, for a 10-year moratorium on commercialwhaling. "22

The response by the major whaling nations at the next meet-ing of the IWC, in 1972, was to reject the UNCHE resolution.Following appeals by the United States in 1972 and in 1973 to theIWC to adopt a moratorium and to fix quotas, and the rejectionof this position by both Japan and the Soviet Union, the UnitedStates "lodged strong protests with both nations. "23 Within theUnited States, Congress enacted the Marine Mammal Protec-tion Act of 1972, prohibiting catching or importation by the UnitedStates citizens of marine mammals and their products, and theEndangered Species Act of 1973.21 Worldwide protests over the

10 S. McVay, Reflections on the Management of Whaling, THE WHALE PROBLEM,

A STATUS REPORT 376 (W. Schevill ed. 1974).21 U.N. Doc. A/CONF.13/L.56 (1958).

22 U.N. Doc. A/CONF.48/14 and Corr. 1, Recommendation 33 (1972).23 COUNCIL ON ENVIRONMENTAL QUALITY, THE FIFTH ANNUAL REPORT OF THE

COUNCIL ON ENVIRONMENTAL QUALITY 443 (1974).24 Marine Mammal Protection Act of 1972, Pub. L. No. 92-522, 86 Stat.

1027; Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884.

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refusal of Japan and the Soviet Union to accept scientifically de-termined limitations heightened interest and attention in the 1974IWC conference. Interestingly enough, the 10-year moratoriumdid not come to a vote in the 1974 meeting. Instead, an alterna-tive proposal was presented for implementation in the 1975-1976whaling season by the Australian delegation. This alternative, theprovisions of which are reproduced below, has become the focalpoint of controversy over both the future of whales and of the In-ternational Whaling Commission itself. The proposal was pre-sented as an amendment to the resolution for a 10-year morator-ium sponsored in 1972, 1973, and 1974, by the United States dele-gation.

AMENDMENT TO USA RESOLUTIONPROPOSED BY AUSTRALIA

PreambleThe International Whaling CommissionNoting that whale stocks are a common concern to mankind;Concerned that some species of great whales are at present

considerably depleted below their optimum popula-tion levels;

Recalling that the historic decline in whale populations oc-curred not only because of excessive exploitation,but also because knowledge was inadequate to protectthe species;

Motivated by the need to preserve and enhance whale stocksas a resource now and for future use when food needsof the world will be greater because of increased hu-man population and by the need to maintain marineecosystems in a well-balanced condition capable ofhigh productivity;

Taking into consideration the long range interests of the con-sumers of whale products and of the whaling industryas cited in Article V.2 of the Convention;

And Recognizing that the management of whale stocks shouldbe based not only on the concepts of maximum sustain-able yield in numbers by species, but should also in-clude such considerations as total weight of whalesand interactions between species in the marine eco-system;

Decides that1. It shall classify all stocks of whales into one of three

categories according to the advice of the ScientificCommittee.

(a) Initial management stocks which may be reduced in acontrolled manner to achieve MSY levels or optimumlevels as these are determined.

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(b) Sustained management stocks which should be main-tained at or near MSY levels and then at optimumlevels as these are determined.

(c) Protection stocks which are below the level of "Sus-tained Management Stocks" as described in (b), whichshould be fully protected.

The committee should define stocks for this purpose, as theunits which can be most effectively managed individually.

2. (a) Commercial whaling shall be permitted on "InitialManagement Stocks" subject to the advice of theScientific Committee as to measures necessary tobring the stocks to the MSY level and then optimumlevel in an efficient manner and without risk of re-ducing them below this.

(b) Commercial whaling shall be permitted on "Sus-tained Management Stocks" subject to the advice ofthe Scientific Committee. There shall be no com-mercial whaling of species or stocks classified as"Protection Stocks," including those species listedfor full protection in the current schedule.

3. Also decides to implement this resolution by:(a) Requesting the Scientific Committee to provide

advice on the criteria which should be used in de-fining categories of whale stocks which should betreated as in Section 1 above. This advice to be pro-vided as soon as possible with a view to its incorpora-tion in the Schedule.

(b) Directing the Scientific Committee to arrange toprovide the Commission with annually updated ad-vice on these criteria and on the allocation of stocksto the categories.

(c) Making all necessary amendments to the Schedulenot later than the 27th meeting of the Commission.

Background to the 1975 IWC Conference

On the eve of the 1975 conference of the International Whal-ing Commission, opinions were sharply divided about the sci-entific validity of the principle of "maximum sustainable yield"(herein referred to as MSY), which is a key component of theAustralian amendment. Advocates cite the enhanced role ofscientists in that the IWC's scientific committee will determinewhich whale stocks will be placed in which categories. Critics,including some from the scientific community, have challengedthe MSY principle on the ground that its data is almost entirelybased upon sightings reported by whalers and that some of itsfundamental assumptions are not consistent with modern sci-

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entific methods and approaches. Dr. Lee Talbot of the U.S.Council on Environmental Quality stated the opposing view inthese terms:

The present state of our knowledge of whales is still very primi-tive. We have plenty of statistics from dead whales - but thewhole thrust of modern biology and ecology is away from totalreliance on such data and towards attempts to understand theecosystem and the organism's place in it.

I conclude that continued harvesting of the great whales onthe basis of the MSY calculations and the fragmentary andvery speculative data base we have is not scientifically justi-fiable. 25

Just prior to the 1975 meeting of the International WhalingCommission, No Man Apart, the publication of the Friends of theEarth (hereafter referred to as FOE), an American environmental-ist organization, attacked the proposed Australian amendment asbeing "a watered-down version of the moratorium . . .nebulousenough to offer the Japanese (in particular) the opportunity tocome up with some interpretation - such as why they can killmore whales next season than ever before."6

Because the patterns of whaling practices have systematicallymoved from the killing of the largest and most economically de-sirable whales to progressively smaller varieties during the periodof IWC regulation, a number of environmental groups havereached the same conclusions as Friends of the Earth: "It wouldseem apparent that the IWC is incapable of reversing thesetrends, otherwise it would have done so."27 The FOE bill ofparticulars against the International Whaling Commission wasnot limited to its serious criticism of the past performance of theIWC. Its additional criticisms were detailed in order to provide astronger foundation for its proposals to abolish the IWC and placethe function of defending whales under the control of the UnitedNations.

The FOE indictment of the IWC emphasized that:

whales often live in international waters and as such are thecommon heritage of all nations regardless of whether or not theyhave a coastline, the technology to kill whales, or the wish touse whale products. The exploitation of whales by two majornations for their short-term benefit is clearly unacceptable.

25 L. Talbot, New Quotas Set for Whales: 1974 I. W.C. Decisions, 5 MAIN-

STREAM 7 (Summer 1974).

2 J. Clark, A. King, & J. Burton, Save the Whales: Abolish the IWC!,5 No MAN APART 1 (June 1975).

27 Id. at 2.

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Secondly, not all the countries which whale belong to the IWC;the Japanese are developing more and more partly or wholly-owned companies in countries such as Peru and Chile, whichdo not belong to the IWC, and they carry on whaling fromthese countries undeterred. Thirdly, the schedule to the IWCpermits any member to opt out of the commission's decisions bylodging an objection within 90 days of the previous meeting.This loophole is often used. 28

The FOE critique attacked head on the defenses of the IWCwhich have been made by J. C. McHugh and others:

Many people have argued that, as the IWC is already in ex-istence, it is better to reform it, rather than to create a neworganization. Indeed, the IWC has made various efforts toimprove itself, such as by abolishing the Blue Whale Unit andexpanding its staff and budget, but the IWC is trapped by itsvery constitution, which commits it to protecting whaling in-terests as well as whales. The IWC has been unable to servetwo masters, and has submitted to the interests of the whalersin the fear that unless they did so, the whalers would walk outof the Commission and continue whaling without any controlsor setting any quotas. 29

The alternative international agency and program proposedby FOE was described explicitely in the same issue of its officialpublication, No Man Apart:

Only an independent body with no vested interests in whaling orwhale products can make these sorts of decisions, and thesedecisions should be made by all nations which are concernedwith the stability of the marine ecosystem, not just by the coun-tries with the technology to kill whales. We believe that theseproblems could be solved if the United Nations were to set upan international cetacean convention, to be administered by oneof their agencies such as the Food and Agricultural Organiza-tion or the UN Environment Programme. Such a conventionwould implement a ten-year moratorium by protecting all thegreat species of whales - the blue, right, bowhead, humpback,gray, sperm, sei, brydes, minke, and fin - and by prohibiting thedeep-sea hunting of all cetaceans. To prevent non-signatorynations from taking advantage of the cessation, all trade in theproducts of the great whales would be prohibited. In order tofind out more about the scale of all shorebased small whalefisheries, all ports and boats operating such fisheries wouldhave to be licensed) °

28 Id.29 id.30 Id.

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The common heritage concept invoked by national and inter-national environmental groups is identical to the position takenby M. Jose Leon Suarez in his 1925 International Law report.The dismissal of the notion that the International Whaling Com-mission could be depended upon to protect whales insured con-tinued controversy regardless of the stance taken by IWC inthe 1975 meeting. These strong recommendations, the punitiveboycotts suggested by several environmental groups, and thecontinued pressure of world-wide opinion, plus the year-by-yeardecline in the number of economically desirable whales apparentlyhelped create a more conciliatory attitude on the part of the twomajor whaling nations, Japan and the Soviet Union.

The 1975 Meeting of the International Whaling Commission

The opening of the 27th annual meeting of the IWC beganwith a dramatic announcement by the delegation from the SovietUnion that it would phase out three Antarctic whaling fleets"as a gesture to growing conservationist pressure." The SovietUnion's delegate, Dr. I. V. Nikonorov, gave what was describedas cautious approval to a plan sponsored by Australia to reducethe levels of catches and safeguard endangered species. TheJapanese delegate, Iwao Fujita, indicated that acceptance of theAustralian plan would not be easy for the Japanese whalingindustry, but that some agreement could be reached if limitswere not set in excess of conservation needs. In its plenarysession on Friday, June 27, 1975, the IWC adopted a far-reachingprogram designed to protect whales from the threat of extinctionand to broaden the scope of research and conservation activities.For the full text of the 1974 decisions of the IWC see the Appendix.The major decision of the Commission was cited as "the mostimportant step yet taken in the protection of the whale from ex-tinction" by Pearce Wright, Science Editor of The Times ofLondon. 31 This decision embodied a program of conservationwhich not only reduced the catch for 1975 from 37,300 to 32,450whales, but established for the first time levels of catch for alloceans. Thus, North Atlantic whaling will be subject to a quotasystem utilized in other ocean regions for some time. The deci-sion was viewed by some delegates to the commission as a partialfulfillment of their proposal for a 10-year moratorium on all whal-ing, a position previously taken by the United States and sup-

31 The Times (London), June 28, 1975, at 2, col. 6.

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ported by Great Britain and other nonwhaling members of thecommission. Conversely, the new position represented a with-drawal of the 10-year moratorium proposal.

Dr. Robert White, a commissioner from the United States,indicated that the new procedures would establish a selectivemoratorium which will prevent commercial whaling from bringingany stock below a safety level. He suggested that:

This affords protection for whales long before they are reducedto endangered levels. Previous practice placed whales in a pro-tected status only when they approached extinction. As aresult of the decision by the International Whaling Commission,commercial whaling will now be prohibited for all fin and seiwhales in the North Pacific; fin whales in almost all the An-tarctic; fin whales in the North Atlantic except for areas aroundIceland and Newfoundland; sei whales in a major region of thesouthern hemisphere, and sperm whales in the vicinity of easternAustralia.32

The status of the largest of whales received particular atten-tion in the meeting. Quotas for male and female sperm whaleswere lowered by oceanic regions. In southern seas, the allowablecatch was reduced from 8,000 to 5,870 males and from 5,000 to4,870 females. In the North Pacific, quotas were reduced from6,000 to 5,200 males and from 4,000 to 3,100 females. In addition,major structural changes designed to strengthen the Commis-sion's secretariat were approved, as was a comprehensive reviewof existing conventions to make the Commission "more consis-tent with modern principles of conservation." The IWC also de-cided to establish an international decade of cetacean researchin order to provide more scientific information on the behaviorand breeding patterns of whales.

One American delegate viewed the 1975 London meeting asthe most realistic in the Commission's history. He stated that:

It's finally dawned on the conservationists that the whalingfleets can't be scrapped just like that, and on the whalers thatsome species really are in danger of extinction. That's made iteasier for both sides to make accommodations and for the com-mission to get down to its business of rational management ofwhaling stocks. 33

For three years, 1972-1974, the United States had called fora 10-year moratorium on whaling. Although it failed to musterthe three-fourths majority required for Commission approval, the

32 Quoted in The Times (London), id.33 N.Y. Times, June 28, 1975, at 1, col. 3.

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position of the United States was. viewed as important to softenopposition to drastically reduced catches.

As of late July, several factors still remained to be resolved.First, each whaling nation which had membership in the Com-mission retained its option to disapprove of the quota reductionswithin 90 days of the decision. Actually, only eight membernations engage in whaling. Although the London conferenceshowed greater inclination for compromise and possible agree-ment than previous IWC conferences, the key actors are Japanand the Soviet Union which harvest over 80 percent of the whalecatches. Secondly, there are six whaling nations which are notmembers of the Commission: Chile, Peru, Portugal, Somalia,Spain, and South Korea. While they currently only account for6 percent of the current harvest, this ratio presumably couldchange. Conservationist groups argue that whaling in some ofthese nations is controlled by the big whaling nations.

Depending upon the resolution of these factors, the 1975 de-cisions of the International Whaling Commission are quite sig-nificant. Concurring with U.S. delegate Robert White, Norway'sdelegate and the chairman of the IWC, Inge Rindal, viewed thereduction as the sharpest on record, "effectively reducing nextseason's total whale catch by 10,000 - from 37,000 to 27,000."Rindal felt that Japan and the Soviet Union would not lodgeobjections stating that "[b]oth the Soviets and Japanese wentalong with most of the new quotas, while abstaining on others. '" 34

The policy of selective moratorium was applied to the finback,second in size to the totally protected blue whale. Only 585 canbe caught in the 1975-76 season in the southern oceans and NorthAtlantic. Last season's quota was 1,550. Drastic cuts were alsomade for the sei, sperm, minke and brydes.

Some Immediate Reactions to the f975 Decisions

The most important question at the close of the 1975 IWCmeeting was whether the two largest whale harvesters wouldconform to the cutbacks or exercise their options to refuse. Be-cause the deadline for this work paper, August 1, 1975, occurredbefore the end of the 90-day option period, the reactions sum-marized are of necessity only the immediate ones. The finalactions and emergent policy decisions, if any, of the major whalingnations, the nonwhaling nations of IWC, and the most active

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national and international environmental and conservation groups,

given expression either unilaterally or through appropriate inter-

national organizations, will take place in the coming months.

The immediate Japanese reactions to the new regulations of the

IWC were strong. The preliminary response implied both deep

disagreement with the proposed cutbacks and probable, albeit

reluctant, official compliance. Shigeru Hasui, a board member

of TAIYO Fishery Company, argued that the Australian proposal

would seriously cut back on whale meat production which was

cited as one of the major aims of Japan's whaling industry at

110,000 tons or "the equivalent to annual protein consumption

of more than 1,000,000 Japanese," or "about one percent of the

country's total protein consumption." 35 In November, 1974, in

anticipation of a serious controversy over harvesting quotas in

1975, Motokichi Morisawa, Executive Director of the Japan

Fisheries Association, had developed a fuller description of Ja-

pan's attitudes and needs with respect to whale meat:

In 1973, for example, domestic whale meat supplies in Ja-pan totaled 123,000 tons, including 95,000 tons from mothershipwhaling operations in the Antarctic Ocean and northern seas,2,000 tons from coastal whaling and 26,000 tons from imports.

Of the total supplies, 61,500 tons were earmarked for generalpublic consumption, 15,000 tons for school lunches and relatedbranches and 46,000 tons for canned and processed food prod-ucts, including ham and sausage. Whale meat thus offers animportant source of animal protein for the Japanese. Whalemeat in the same year also accounted for around 6 percent oftotal supplies of meat products in this country.

If animal protein supplies, equivalent in volume to 123,000tons of whale meat, are sought through imports, necessary im-ports are estimated to reach around 220,000 tons in terms ofbeef and over 290,000 tons in terms of pork. Beef imports thenwill reach a level equal to 76 percent of domestic production(290,000 tons in 1973) and 2.9-fold the actual imports in 1973 at77,000 tons.

Japan's beef imports in that case will account for 12 percentof the total volume of world beef trade. In view of the currenttrend of the global meat situation as well as the latest tradepolicy of the United States, such sizable imports of beef areconsidered extremely difficult of realization.

Whale meat prices also are reasonably low despite the re-cent advance of high-grade items. The price of whale meat atpresent stands at a level about one-fourth that of beef and one-half that of pork. It also is around 60 percent of that of chicken.

35 Y. Nakagawa, Japan's Whalers Brace for IWC 'Harpoon,' Japan TimesWeekly, June 28, 1975, at 11, col. 1.

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Whale meat thus is a valuable source of animal protein forJapanese households. As such, a whaling ban is certain to bringheavy pressure to bear on the household economy of the lesseconomically blessed stratum ...

Supporters of the campaign for an overall ban on whalingand some countries, including Japan, in favor of continuingwhaling operations appear to be taking basically differentstands regarding the concept about the character of the whaleas an animal. It seems that the former holds the view thatwhales should be classified in the same category of wild ani-mals as lions, elephants and giraffes. In contrast, the latterfeels that whales are a source of esculent animals.

Food supplies cannot be increased sufficiently, swiftly andsharply to keep pace with rising population. Food suppliesfrom lands are limited. Hence, animal protein resources re-quired by man should be sought from seas for coping with thesituation. If management of marine resources is adequatelyand scientifically carried out, oceans can be properly pasturedin the same manner as raising cattle and swine on land. Marineresources at the same time are not in the stage of extermina-tion.36

The necessity for a reorganization of the components of theJapanese whaling industry has been cited in Japanese newsstories as an immediate and direct impact of the cutbacks in whalecatches adopted in the 1975 IWC meeting as has the detrimentaleffect upon "the livelihood of crew members of whaling ships." 37

One representative of the Japanese whaling industry acknowl-edged that three major whaling companies, Nippon Hogei, NittoHogei, and Kokuzo Hogei, would merge by spring, 1976. Inanticipation of a sizable cut in Japan's whale catch, the cost ofwhale meat in Japan rose 38 percent over the prices of June, 1974,reaching close to the price level of pork. 38 The division of cer-tain quotas set in the 1975 IWC meeting was left to be negotiatedby Japan and the Soviet Union. The Japanese press anticipatedthat Japanese fisheries would face "hard negotiations with theSoviet Union to share the catch of fin whales in an Antarcticarea which is not Japan's traditional whaling ground." 39 Inshort, the initial Japanese reactions were negative, seriously con-

36 Morisawa, International Opinion on Whaling and Japan's Position, 31 KEIDAN-REN REVIEW 7-12 (Nov. 1974).

37 Comment of Toshio Futami, member of the central committee of the all-Japan Seaman's Union, N.Y. Times, June 29, 1975, at 2, col. 3.

38 Id. See also Japan Times Weekly, July 5, 1975, at 3, col. 3.39 Japan Times Weekly, July 5, 1975, at 3, col. 1; Japan Times Weekly,

July 12, 1975, at 9, col. 1.

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cerned, but not clearly committed to rejection of the cutbacks;although, as noted above, at the time of the completion of theWork Paper, the 90-day period in which Japan may negate itsobservance of the IWC cutbacks had not ended.

The initial responses of several major environmental groupswere complete rejection of the Australian amendment. Thecutbacks were applauded but then condemned as being far toolimited. Several conservation groups had observers at the Lon-don IWC meeting and by mid-July, sent to their memberscritiques of the decisions. The comments of the newsletter ofthe Society for Animal Protection Legislation, Washington, D.C.,provide a representative reaction:

The IWC still belongs to the old guard. Yet thisyear's quota cuts (approximately 8,500 whales) were larger thanany ever adopted in the past. The boycott and demonstrationshave had an effect. Their continuance is essential if furtherneeded protection for the whales is to be won. Indeed they areneeded even to hold the modest gains won this year. Whenthe antarctic fin whale quota was cut to 220, Mr. Fujita stressedthat this must be the decision for this year only, and Mr. Rindalreassured him that indeed that was always so. The Chairman'sreassurance that the reduced fin whale quota is "only for thecoming season which has always been the case," makes clearthe transitory nature of any protection the IWC may give.4°

Clearly, the battle lines between the conservation group andthe whaling industries have not been altered. Whether IWC'snew policy of more drastic cutbacks will be continued and ex-tended, whether nations such as Japan and the Soviet Unionwill seek to evade compliance, either by opting out under IWCrules, or by transferring their whaling operations to whaling na-tions which do not belong to IWC (such as Chile, Peru orSomalia), and whether national and international conservationgroups successfully intensify their efforts at boycotting and pro-hibiting whaling activities and sales via national legislation, allare questions which will have a direct bearing on the Interna-tional Whaling Commission and its future or demise as an inter-national body. The United States Commissioner, Robert M.White, provided a balanced assessment of some of the immediateproblems which demand resolution:

While the United States is pleased at the progress made here,it feels that many steps remain to be taken. The data on which

40 Newsletter of the Society for Animal Protective Legislation, July 18, 1975,

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Management Procedure are based are uncertain and requiremuch improvement. As whaling operations go down, weneed to ensure that whaling vessels retired by IWC membersdo not come to be used for whaling by non-IWC nations. Weneed to enlist in the IWC whaling nations who are non-IWCmembers. We need to investigate more humane methods ofkilling whales, and we need to step up research so that ourunderstanding of whales is more adequate.41

To date, the efforts on the part of international organizationsto build an international la"w on whaling have not been particu-larly satisfactory. Part of the problem has been the difficultyof obtaining commonly accepted, scientific facts as to the condi-tion of the whale. From the perspective of some whaling nationsit has seemed that it has been almost necessary to destroy thewhale before it could be seen that its numbers had been severelydiminished.

Over time, science and technology are providing substitutesfor whale products. This may substantially reduce reliance onthe whale from a general economic point of view. But there isan urgent need for nations to accelerate this process and develop aserious commitment to this goal in the harvesting nations.

41 Statement of the Honorable Robert M. White, U.S. Commissioner to theInternational Whaling Commission, June 27, 1975.

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